The House of Lords/House of Commons Joint Committee on Human Rights ("JCHR") has published a report entitled "The Meaning of Public Authority under the Human Rights Act", in which it considers the arguments for clarifying and widening the scope of the Human Rights Act ("HRA") through the application of a wider interpretation of "public authority" than that which has been adopted by the courts in the case law to date. The report considers a number of different means by which this might be achieved and concludes that there is a strong case for legislative intervention.
Key points made in the report
The current state of the law is unsatisfactory in that the courts, most notably in the Leonard Cheshire case, have adopted a restrictive interpretation of section 6 (3) (b) HRA in relation to the circumstances in which "hybrid" or "functional" public authorities are subject to the duty to act compatibly with Convention rights. This has given rise to uncertainty about the extent to which the users of contracted-out services can seek to rely on Convention rights where disputes arise with the service provider. In view of the increasing trend towards the contracting out of public functions, action is needed to address this problem.
The problem is unlikely to be solved satisfactorily by the courts. Although two cases on this issue are currently on appeal to the House of Lords, it is possible that their Lordships may follow the Leonard Cheshire line of cases or that their analysis may be restricted to the particular facts rather than clarifying the issue as a matter of principle.
The Government has attempted to address the problem by issuing guidance for local authorities on contracting for services in the light of the HRA. The aim of this was to ensure that the Convention rights of service users were taken fully into account when a "core" public authority contracted out a public function to the private sector. However, the JCHR found the guidance to be inadequate and concluded that it could be no substitute for the direct protection of Convention rights offered by section 6 HRA. At best, an improved version of the guidance might be a useful "stop-gap" for reducing the adverse effects of the currently narrow interpretation of "public authority".
The report concludes that the most effective way to address the problem would be through the introduction of new primary legislation, either amending or supplementing the HRA definition of "public authority" or "functions of a public nature".
Any regular recipient of these e-bulletins will be aware that the courts have been grappling for some time now with this issue. Section 6 HRA makes it unlawful for "public authorities" to act incompatibly with Convention rights. The HRA does not define "public authority" except to say (in section 6 (3) (b)) that it includes "any person certain of whose functions are functions of a public nature". The effect of this is to distinguish between "core" or "pure" public authorities (such as central government departments, which must comply with the Convention rights in everything that they do), and "hybrid" or "functional" public authorities which will only be "caught" by section 6 insofar as they are exercising a public function. The difficulty lies in establishing which functions are "public functions" for this purpose. The courts have, to date, adopted a narrow interpretation, focusing on the administrative links between a private body exercising such functions and the delegating State body.
According to the JCHR, there is a real danger that public bodies may be able to avoid their human rights obligations by delegating the performance of public functions to private bodies. The contracting out of public services continues apace, and tends to take place in sectors in which the service users are from vulnerable sections of the community, such as elderly people in long term care. For such sectors to be deprived of the protection afforded by the HRA would seriously undermine the principle of "bringing rights home for everyone".
Change through the courts
The JCHR notes with disappointment that since the publication of its last report on this issue in 2004, there has been no significant development in case law. There have been few test cases. The JCHR suggests that this is due more to the vulnerability of the potential claimants and the lack of resources to bring claims, than to the lack of an underlying problem. Although the Government has sought to intervene in appropriate cases, in support of a wider interpretation of public authority, the courts have not yet been amenable to these arguments.
Even if the House of Lords were to take the opportunity now open to it to "narrow the gap" in protection by widening the scope of section 6, the JCHR is concerned that this would be of limited effect because the judgment may be restricted to the specific facts of the case or at best to cases involving the same sector. The evolution of a satisfactory judicial definition would therefore be on a case-by-case basis, and may take some years to emerge.
The JCHR considers steps taken by the Government outside the courts, including the publication of guidance on contracting for services in light of the HRA (the "Guidance"). The Guidance was intended to ensure that local authorities took account of human rights issues when contracting out public services to private bodies. However, the JCHR notes that this Guidance was not well publicised, and does not contain model or standard terms, which would be of practical use to public bodies and contractors. While the report recommends revision of the Guidance to include model terms, the JCHR makes clear that this contractual protection of human rights can only be a "stopgap" measure; it is not a substitute for the direct application of the HRA to service providers.
The JCHR concludes that there is an urgent need for action and the time is right for legislative intervention. One option considered at the time of the JCHR's first report was the creation of a schedule of identified public authorities, similar to that used in the Freedom of Information Act 2000. This was rejected on the basis that it would unduly restrict the HRA's flexibility. It would also not address the main point of difficulty, as it would place emphasis on the character of the body rather than the functions it performs. Another option considered was direct amendment of the HRA itself. However, given the constitutional importance of the Act this was found to be inappropriate. The JCHR concluded that the enactment of a separate, supplementary and interpretative statute, specifically directed to clarifying the interpretation of section 6(3) (b) was the preferred course of action.
It is not surprising that the JCHR has taken a strong stance on this issue. Although it considered three years ago that it was too early for legislative action, no further developments have taken place in case law and contractual solutions have had very limited effect. It is now almost ten years since the HRA was enacted, and the existence of this uncertainty over such a key question of application can no longer be regarded as a teething problem.